[2021] KEHC 2011 (KLR)
The court found that the trial magistrate failed to account for the one year the applicant spent in custody prior to sentencing, as required by section 333(2) of the Criminal Procedure Code. The applicant's mitigation did not raise the issue, but the law imposes a duty on the court to consider such period...
Source-derived case information.
- Citation
- [2021] KEHC 2011 (KLR)
- Parties
- Applicant: Alex Mungi Mbugua; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 150 of 2019
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Revision
- Outcome
- application allowed
- Judges
- DO Ogembo
- Legal Topics
- Sentencing Revision, Pre Sentence Custody, Application of Section 333 2 Cpc
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alex Mungi Mbugua
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Revision
Legal Issues
- 1 Whether the period spent in custody by the applicant prior to sentencing should be accounted for in the final sentence as per section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court found that the trial magistrate failed to account for the one year the applicant spent in custody prior to sentencing, as required by section 333(2) of the Criminal Procedure Code. The applicant's mitigation did not raise the issue, but the law imposes a duty on the court to consider such period regardless. The High Court held that the omission was an error and revised the sentence to deduct the one year spent in custody from the total imprisonment term imposed by the trial court.
Court Disposition
application allowed
Orders
- The applicant shall serve his imprisonment term(s) as ordered by the trial court less the period of 1 year that he spent in custody awaiting determination of his case.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL REVISION150 OF 2019
ALEX MUNGI MBUGUA ……..……….……….………………APPLICANT
VERSUS
REPUBLIC …………………………………………….……. RESPONDENT
RULING
The applicant herein, ALEX MURIGI MBUGUA, has vide an application dated 23. 5.2019 pleaded with this court for revision of the sentence passed on him in Makadara Chief magistrate’s court, Cr. Case Number 1605 of 2017. The applicant seeks that the period he spent in custody pending determination of his trial bee accounted for in the sentence.
This application is basically hinged on section 333(2) of the criminal procedure code. the said section states at its proviso;
“Provided that where the person sentenced under sub-section (1) has prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”
I have considered the proceedings herein. The applicant was first arraigned in court on 25. 7.2017. Though he was granted bail (on terms), he remained in custody till the late of sentence on 10. 8.2018. This was a period of 1 year.
I have also considered the sentencing proceedings of the lower court. It is clear that the trial court considered the relevant provisions of the law on both charges, the mitigation that the applicant made, and also a report of the probation officer. In his mitigation, however, he never raised the issue of period he had spent in custody. The Honourable trial magistrate did not note that in the sentence the period spent in custody had been accounted for. The court ought to have accounted for the same as provided for in the law above.
It is for this reason that I find merit in the application of the applicant dated 23. 5.2019. I allow the same and order that the applicant do serve his imprisonment term(s) as ordered by the trial court less the period of 1 year that he spent in custody awaiting determination of his case.
Orders accordingly.
D. O. OGEMBO
JUDGE
17. 11. 2021.
Court:
Ruling read out in court (on-line) no presence of the applicant (Nairobi West) and Ms. Ndombi for state.
D. O. OGEMBO
JUDGE
17. 11. 2021.
FROM: HIGH COURT APPELLATE SIDE
18TH NOVEMBER 2021
HCCRREV. NO. 150 OF 2019
HIGH COURT CRIMINAL REVISION NO. 150 OF 2019 ORIGINATING FROM THE CHIEF MAGISTRATE’S COURT AT MAKADARA CRIMINAL CASE NO. 1605 OF 2017. APPELLANT ALEX MUNGI MBUGUA(NWP/1259/018/LS)APPLICANT DO SERVE HIS IMPRISONMENT TERM(S) AS ORDERED BY THE TRIAL COURT LESS THE PERIOD OF 1 YEAR THAT HE SPENT IN CUSTODY AWAITING DETERMINATION OF HIS CASE.
DEPUTY REGISTRAR